Duane v. Molinak , 31 Mont. 343 ( 1904 )

MR. COMMISSIONER OLAYBERG-

prepared for the court the following opinion:

Appeal from a judgment. The complaint was filed in the police court of Anaconda to recover an unpaid balance due upon a contract for purchase and sale of land. Defendant answered, denying the allegations of the complaint, and alleging by way of counterclaim facts in support of damages to the amount of $300 for certain misrepresentations of plaintiff in the contract of sale. Tlie action was tried, and resulted in a judgment in favor of plaintiff for the amount claimed in liis complaint. From this judgment defendant appealed to the district court. After such appeal was perfected, defendant filed an amendment to: his answer, pleading as an affirmative defense the statute of frauds. No replication was filed to this amendment, and none was required (Section 1528, Code of Civil Procedure), the pleadings in the district court upon an appeal from a justice or police court being governed by the same rules as to pleadings in these courts. •

After the jury was called and sworn to try the case in. the district court, the defendant moved for judgment on the pleadings, and that the jury be instructed to render a verdict for defendant for his costs, which motion was bv the court granted, and a verdict rendered for defendant for his costs as directed. A judgment was thereupon entered in favor of defendant for his costs and the sum of $300 damages as claimed in the counterclaim alleged in his answer in the police court. Plaintiff appeals from this judgment.

A reversal must follow. The district court sitting to hear appeals from a justice’s or police court must try the case so appealed de novo, and exercise only the same jurisdiction as was exercised by the justice’s or police court. (State ex rel. Grissom v. Justice Court of Twp. No. 1, 31 Mont. —, 78 Pac. 498; Clark v. Great Northern Ry. Co., 30 Mont. 458, 76 Pac. 1003; State ex rel. Shanahan v. Lindsay, 22 Mont. 398, 56 Pac. 827; State v. Deslauries, 13 Mont. 398, 34 Pac. 490; Missoula Electric Light Co. v. Morgan, 13 Mont. 394, 34 Pac. 488.)

The record does not disclose that any other issues than those of fact arising on the pleadings were tried in the police court. A further and additional issue of fact was presented to the district court upon the amendment which was filed to the answer of defendant, but the issues joined by the answer filed in the police court remained to be disposed of as they were made up in that court. The original answer was not superseded by the amendment, but still remained, and presented issues of fact to be determined by tbe district court. With these issues remaining, the court could neither grant a judgment on the pleadings nor direct a verdict for defendant. (Horsky v. Moran, 13 Mont. 250, 34 Pac. 360; Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631; Bach, Cory & Co. v. Mont. L. & P. Co., 15 Mont. 345, 39 Pac. 291; Swinehart v. Pocatello Meat & Produce Co., (Idaho) 70 Pac. 1054.)

'But again, the verdict as directed by the court and returned was for the defendant for his costs.. Notwithstanding this verdict, judgment was entered in favor of defendant for his costs and for $300 damages. So we have the anomaly of a verdict for defendant for costs and a judgment for costs 'and $300 damages.

We advise that the judgment appealed from be reversed.

Per Curiam.- — Por the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.

Reversed and remanded..